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2019 DIGILAW 992 (GAU)

Aruna Gogoi v. Bbabani Phukan

2019-09-04

ACHINTYA MALLA BUJOR BARUA

body2019
JUDGMENT AND ORDER : 1. Heard Mr. D. Das, learned senior counsel appearing for the petitioner. Considering the facts and circumstance prevailing in this matter and also taking note of the situation under which the present revision petition has been preferred, we deem it appropriate to pass the following order without issuing notice to the respondent and also without hearing him. We say it so as because the order we proposed to pass would not materially or adversely affect the respondent in any manner because whatever the respondent may like to say, he would still get the opportunity to say when the matter would be taken up by the trial court for a consideration when the application for mandatory injunction would be taken up. 2. The petitioner herein had preferred the Title Suit No. 13/2019 against the respondent, who was arrayed as the defendant No. 2 therein. Without going into the merits of the rival claims, we take note of that the respondent is presently occupying a plot of land which has access to the main road being the KD Road. The land adjacent to the respondent's land is the land of Mohan Gogoi and the land behind the land of the respondent-Bhabani Phukan is the land of the present petitioner-plaintiff. It is stated that there was a small passage between the land of the respondent-Bhabani Phukan and that of Mohan Gogoi and the said passage was earlier used by the plaintiff-petitioner for having ingress and egress to her land, which is located right behind the land of the respondent-Bhabani Phukan. It is stated, there was some encroachment of the passage and without expressing any merit on the said claim, what we take note of is that for whatever reason, the said passage now stands closed. 3. Being aggrieved by the closure of the said passage, the petitioner-plaintiff preferred the Title Suit No. 13/2019 for a declaration of her right to have some provision for ingress and egress through the passage which she earlier used. 4. Again, without going into the merits of such claim, we take note that by the order dated 20.7.2019 in Misc(J) Case No. 33/2019 of the learned Civil Judge, Lakhimpur, it was ordered that the facility of ingress and egress be provided to the plaintiff-petitioner through the main gate of the respondent-Bhabani Phukan. 4. Again, without going into the merits of such claim, we take note that by the order dated 20.7.2019 in Misc(J) Case No. 33/2019 of the learned Civil Judge, Lakhimpur, it was ordered that the facility of ingress and egress be provided to the plaintiff-petitioner through the main gate of the respondent-Bhabani Phukan. To that extent the petitioner-plaintiff had availed the said opportunity and was having the benefit of her ingress and egress through the land of the respondent-Bhabani Phukan and was entering her own land from the small opening on the back wall of the respondent. During the currency of the said order, certain developments had taken place resulting in a closure of the small opening which was used by the petitioner-plaintiff for her ingress and egress. As a result of the closure of the opening, the earlier order dated 20.7.2019 providing ingress and egress cannot further be acted upon by the petitioner-plaintiff in order to avail the ingress and egress. Consequent thereof, the Misc(J) Case No. 39/2019 had been filed under section 39 of the Specific Relief Act read with section 151 of the CPC. 5. In the said application, an order dated 31.8.2019 has been passed, whereby notice was issued to the present respondent and 7.9.2019 has been fixed for service report and filing of objection. 6. Although otherwise we do not find any infirmity in the said order, but one effect of the order would be that the small opening in the back wall of the respondent's plot of land being closed, the plaintiff-petitioner would now no longer have any access for ingress and egress from her land. It is stated that the plaintiff-petitioner is aged about 73 years old and the effect of the closure of the opening is that now she has to remain confined within her land unable to come out. 7. In Hammad Ahmed v. Abdul Majeed in Civil Appeal Nos. 3382- 3383 of 2019, the hon'ble Supreme Court in its judgment dated 3.4.2019 in paragraph 56 had held that when clear and prima facie material justifies a finding that status quo has been altered by one of the parties, the order in mandatory injunction can be given. 8. 7. In Hammad Ahmed v. Abdul Majeed in Civil Appeal Nos. 3382- 3383 of 2019, the hon'ble Supreme Court in its judgment dated 3.4.2019 in paragraph 56 had held that when clear and prima facie material justifies a finding that status quo has been altered by one of the parties, the order in mandatory injunction can be given. 8. We have already taken note of that in the order dated 20.7.2019 in Misc (J) Case No. 33/2019, an order requiring the respondent not to restrain the plaintiff-petitioner and other members of her house from using his land for ingress and egress had been passed until further order. The closure of the opening facilitating such ingress and egress, in our view, would be altering the status quo as indicated in the order dated 20.7.2019 and, therefore, as viewed by the Supreme Court, it may be a case where mandatory injunction can be given. 9. The provisions for mandatory injunction can be found in section 39 of the Specific Relief Act, 1963, which has to be understood that for all purpose it is also a form of injunction. The mandatory injunction being also a form of injunction, we are of the view that the provisions of order XXXIX, rule 3 of CPC can also be made applicable in a proceeding for grant of mandatory injunction. It being so, apart from issuing notice for filing of objection, if the circumstance so demands and there exists a strong circumstance, which would prick the conscience of the court and do a violence of the sense of justice, the court should also consider as to whether an ad-interim mandatory injunction is required to be passed for the purpose. 10. Accordingly, we are of the view that the ends of justice requires that in a circumstance where a 73 years old lady is kept confined to her residence as because the facility for ingress and egress has been closed by the respondent, it would be a case of having a strong circumstance, where a consideration for an ad-interim mandatory injunction is also required to be given by the court. 11. 11. Accordingly, without expressing any merit on the rival claims on the desirability of passing any such ad-interim mandatory injunction, we direct the learned Civil Judge, Lakhimpur to take up the Misc(J) Case No. 39/2019 on 5.9.2019 and give a consideration whether any ad-interim mandatory injunction is required to be passed. We are making it clear that requiring the learned Civil Judge to consider is not a direction to issue mandatory injunction and the learned Civil Judge shall pass its own reasoned order depending on the facts and circumstance and also by taking the relevant laws into consideration. 12. We are reiterating that we are passing this order without hearing the respondent as firstly we are only directing a consideration of the requirement of an ad-interim mandatory injunction and secondly, if we take a different view and issue notice, again the same mischief would be perpetuated leaving out the petitioner-plaintiff from having a consideration as to whether an ad-interim mandatory injunction is required to be passed or not for the time being. In terms of the above, the revision petition stands disposed of.